Narayan Chandra Das Dalal vs State of West Bengal

Anil K. Sen, J.—The Petitioner in this Rule is an Inspector of Co-operative Societies. Since May 29, 1969, it is not in dispute that the post of an Inspector of Co-operative Societies has been declared to be a Class II gazetted officer''s post with the necessary status and privileges thereof. The Government notification dated May 29, 1969, in conferring the aforesaid status on these Inspectors of Co-operative Societies further provided by delegation of authority that such Inspectors may be appointed by the Registrar of Cooperative Societies who may not only exercise the authority of appointment but also the authority of sanctioning leave in respect of such officers.

In this Rule, the Petitioner is disputing the jurisdiction of the Registrar of Co-operative Societies in suspending him from service by an order dated June 29, 1973 and in initiating a disciplinary proceeding under Rule 10 of the West Bengal Services (Classification, Control and Appeal) Rules, 1971, on a charge-sheet dated June 29, 1973. The Petitioner was charged with misconduct on the allegation of insubordination and defiance of lawful orders made by the superior authorities.

The Rule is being contested by the Respondents though no affidavit has been filed. The learned Counsel for the Respondents has conceded before me and in my opinion, very rightly under the Rules that the Registrar of Co-operative Societies had not the authority under the Rules to either issue the charge-sheet or initiate the disciplinary enquiry. Under Rule 9 of the Rules, as aforesaid, the competent disciplinary authority in respect of the Petitioner is the Governor and as such, the Registrar could not have initiated the disciplinary proceeding. On the concession so made, this Rule naturally succeeds in part and the disciplinary proceeding as initiated on the charge-sheet dated June 29,1973 and including the same must and is hereby set aside.

There has, however, been a strong controversy between the learned Advocates of the two sides as to whether the Registrar could have lawfully suspended the Petitioner as he has done by the impugned order of suspension dated June 29, 1973. It has been contended by Mr. Mukherjee that the Registrar not being the competent disciplinary authority could not have passed the order of suspension pending investigation into charges framed by him when framing of the charges was clearly beyond the powers of the Registrar. The learned Counsel for the Respondents, however, has contended that when by virtue of a delegation made under Rule 6(1) of the Rules as aforesaid, the Registrar is the appointing authority, he is equally competent under Rule 7 to suspend the Petitioner from service.

Having heard the learned Advocates for the parties, I am clearly of the opinion that it is not possible to accept the contention of the learned Counsel for the Respondents though not for reasons as contended by Mr. Mukherjee for the Petitioner. Rule 7 no doubt provides that the appointing authority or any authority to which it is subordinate or any authority empowered by the Governor in that behalf may place a Government servant under suspension in certain contingencies specified in that Rule. It is not in dispute in the present case that there has been no delegation of the authority to suspend by the Governor in favour of the Registrar as the learned Counsel for the Respondents has conceded absence of any such delegation. The question therefore is, does the Registrar come within the term ''appointing authority'' ''or any authority to which it is subordinate''. The term ''appointing authority'' has been defined in Rule 3, Clause (2) and is set out hereunder:

appointing authority in relation to a Government servant means (i) the authority empowered to make appointments to the services of which the Government servant is for the time being a member or to the grade of the service in which the Government servant is for the time being included, or (ii) the authority empowered to make appointments to the post which the Government servant for the time being holds, or (iii), the authority which appointed the Government servant to such service, grade or post as the case may be, or (iv) where the Government servant, having been a permanent member of any other service or having substantively held any other permanent post, has been in continuous employment of the Government, the authority which appointed him to that service or to any grade in that service or to that post, whichever authority is the highest authority.

On the definition clause, as aforesaid, the appointing authority will be the highest amongst the different authorities specified. No doubt, the Registrar comes within Sub-clause (iii) in the aforesaid definition but under Clause (i) it was the Governor who was the authority empowered to make the appointment to the services of Inspectors of Co-operative Societies. It is no doubt correct that the authority to appoint which is vested in the Governor had been delegated on a valid delegation under Rule 6(1) in favour of the Registrar but in law by such delegation the Governor has not divested himself of the powers to make the appointment. That being the position, Governor still remains an authority empowered to make the appointment as envisaged by Sub-clause (i) of this definition clause. In the result, he being the highest authority and certainly higher than the Registrar of the Co-operative Societies must be deemed to be the appointing authority for the purposes of Rule 7. Therefore, the Registrar of Co-operative Societies not being the appointing authority on the definition clause as aforesaid nor an authority to which the appointing authority is subordinate, was not authorised in law to suspend the Petitioner. This being the position, I must uphold the contention of Mr. Mukherjee and hold that the order of suspension was clearly beyond the powers of the Registrar of the Co operative Societies.

On the conclusion as above, this application, therefore, succeeds and the Rule is made absolute. Both the orders of suspension and the disciplinary proceeding initiated on the charge-sheet dated June 29, 1973, are hereby quashed.

Let a writ in the nature of certiorari be issued incorporating the above direction.

Liberty, however, is given to the appropriate authority to proceed afresh and pass all necessary orders including an order of suspension, if necessary, in accordance with law.

Let a plain copy of this order be handed over to the learned Counsel for the Respondents.